Case Prep and Testimony

L.E.S.B. 10.7

The Police Officer’s RoleThe Police Officer’s Role

To assist the prosecutor in presenting the facts of

a case to a jury or trial court judge

Successful ProsecutionSuccessful Prosecution

Is largely dependent on an open relationship between

during trial preparation&

Keys to Proper TestimonyKeys to Proper Testimony

1. TruthfulTruthful– objective– fact based– never guessing– foregoing intentional lies

Key Elements of TestimonyKey Elements of Testimony

2. UnbiasedUnbiased– without assumptions– personal opinions aside

The Result of The Result of Intentional LiesIntentional Lies

Lose case(s)Lose case(s)

Officer disciplineOfficer discipline

Perjury or other chargesPerjury or other charges

Failure of due processFailure of due process

Statements become part Statements become part of the record of the record

Preparation StepsPreparation Steps

Prepare complete reports.

Re read all reports, notes…

Review diagrams, evidence photos…

Mug shots GO BACK TO THE SCENE!

Preparation Steps… Courthouse

Confer with your prosecutor

Meet and discuss case with all witnesses

Preparing to Testify

Thorough ReportsThorough Reports

addressaddress– who– what– when– where

make it “make it “happenhappen” ”

Thorough Reports, Thorough Reports, cont.cont.

a poor report = a poor case a poor report = a poor case

the defense will key in on errors the defense will key in on errors – can be used to discredit officercan be used to discredit officer– may be used to impeach witnessesmay be used to impeach witnesses

Thorough Reports, Thorough Reports, cont.cont.

list appropriate charge and list appropriate charge and statute statute

know laws well or have know laws well or have reference readily availablereference readily available

Other Report Reminders… Other Report Reminders… know and use resources check and re-check grammar retain or destroy notes???

Retention of NotesRetention of Notes

may be asked to “interpret” notesmay be asked to “interpret” notes– can’t read – can’t remember cryptic writings

may cause officer to lose focus may cause officer to lose focus while flipping back and forthwhile flipping back and forth

defense can request under disclosuredefense can request under disclosure

Re-read All Police ReportsRe-read All Police Reports

length of time vs. memorylength of time vs. memory• memory fades

• details blend from cases

• review is like cramming for an exam

Re-read All Police ReportsRe-read All Police Reports

thoroughness affects valuethoroughness affects value• accuracy issues

• perception

Re-read All Police ReportsRe-read All Police Reports

re-visit the scene

Re-read All Police ReportsRe-read All Police Reports

ONLY READ THE CRIMINAL COMPLAINT – The prelim is NOT a trial– Only P.C. is required– Defense is entitled to all that you used, so use

only the Criminal Complaint (it contains P.C.)

Preparation StepsPreparation Steps

A. Prepare complete reportsPrepare complete reports..

B. Re-read all reports.Re-read all reports.

C. Confer with your prosecutor.

Confer With ProsecutorConfer With Prosecutor

get prosecutor involved early

review strong and weak points

re-live the call

keep details confidential

A good way to lose a case in court is by:

giving more information giving more information than you are askedthan you are asked

not telling the prosecutor if not telling the prosecutor if your case has a weak spotyour case has a weak spot

Key Factors in Testimony

professional appearanceprofessional appearance

Reminders:

dress conservativelyress conservatively avoid excessive jewelryavoid excessive jewelry no gumno gum speak clearly speak clearly stand tallstand tall

Key Factors in Testimony

AttitudeAttitude– general

• towards prosecutortowards prosecutor• towards defense attorneytowards defense attorney• towards the jury and judgetowards the jury and judge

Key Factors in Testimony

AppearanceAppearance– groominggrooming– attireattire– demeanordemeanor

Physical or personal appearance is important, because it will affect the

weight given to your testimony by the jury.

General DemeanorGeneral Demeanor

pre-trial jitterspre-trial jitters• timeliness• pre-trial preparation

General Demeanor, General Demeanor, cont.cont.

behaviorbehavior• humor is out• sterile and unbiased• maintain composure

Towards the ProsecutorTowards the Prosecutor

Your “Allie and Coach”

Towards the ProsecutorTowards the Prosecutor

Answer only what you are asked• complete• brief• truthfully• not overly aggressive

Successful prosecution also depends on…

touching base with the Prosecutor BEFOREBEFORE you

have completed your investigation

The Primary Goal The Primary Goal of the Defenseof the Defense

is to create

REASONABLE DOUBTREASONABLE DOUBT

in the minds of jurors

The Defense, The Defense, cont.cont.

is sworn to protect the accused

will key on prosecution’s lack of preparation

Defense TacticsDefense Tactics intentional mispronunciation of officer’s

name

playing down training/qualifications

asking multiple questions rapidly

asking questions which are really statements

Aggressive DefensesAggressive Defenses

avoid rushing from the witness stand when testimony is done

be prepared to be recalled to the stand

closing argument usually presents the worst attack on officer credibility

Dealing WithDealing With The DefenseThe Defense

listen carefully

think before answering pause briefly prior to answering questions to

– Controls pace of cross-examination– Allows opportunity for objection

ask for clarification

respond carefully and clearly

NEVER, EVER Argue with the defense.NEVER, EVER Argue with the defense.

Dealing WithDealing With The Defense, The Defense, cont.cont.

repeating back “stupid” questions repeating back “stupid” questions buys time, allows the prosecutor to buys time, allows the prosecutor to object, and covertly emphasizes a object, and covertly emphasizes a question that was inappropriate.question that was inappropriate.

Although it is important to avoid sarcasm,

Dealing WithDealing With The Defense, The Defense, cont.cont.

follow rules & procedures don’t take it personally

Most importantly:Most importantly:

Dealing WithDealing With

ObjectionsObjections

Stop speaking immediately.

Don’t finish your sentence.

Wait for judge to rule: overruled- disagrees with objection

(answer) sustained- agrees something is improper

(don’t answer)

Towards the JuryTowards the Jury

recognize varying personalities

impress with honesty eye contact enhances credibility

Towards the Jury, Towards the Jury, cont.cont.

If you are uncomfortable, focus on a

“friendly looking”“friendly looking” juror, or at the wall area

above their heads.

The JudgeThe Judge

arbitrates all legal matters protects the rights of the accused adheres to proper procedural rules

The Judge, The Judge, cont.cont.

often has the final say

Speaking to the JudgeSpeaking to the Judge

eye contact is important

address respectfully

Non-juried TrialsNon-juried Trials

Officers should address all testimony towards the judge

Exercising RespectExercising Respect

Address all others present as:

RecallRecall and Refreshing MemoryRefreshing Memory

the importance of accuracy/thoroughness

RecallRecall and Refreshing MemoryRefreshing Memory

defense tactics• leading questions

• open ended questions

Courtroom LayoutCourtroom Layout

Demeanor on the StandDemeanor on the Stand

preliminary hearing role

Testimony to establish probable cause that a crime has been committed .Testimony to establish probable cause that a crime has been committed .

Demeanor on the StandDemeanor on the Stand order of events

• namename

• employeremployer

• “ “lead in”lead in”

• identify defendantidentify defendant

• intro. of evidenceintro. of evidence

• possible demonstrationpossible demonstration

Civil Court ActionsCivil Court Actions

no prosecutor

lesser “burden of proof “ for judgment

does not require unanimous verdict (5:6)

Lessons of Fuhrman…Lessons of Fuhrman…

The defendant was one of two detectives originally assigned to

investigate the murder of Nicole Brown SimpsonNicole Brown Simpson

cont.

In July, 1994, Fuhrman appeared a witness in the

preliminary hearing of the

homicide case against O.J. SimpsonO.J. Simpson

cont. Prosecutor’s question:Prosecutor’s question:

…I want you to assume that perhaps, at some time since 1985 or 86, you addressed a member of the African American race as a “nigger”.

Is it possible you have forgotten Is it possible you have forgotten that act on your part?that act on your part?

cont.

Defendant’s response:Defendant’s response:

No, it is not possible.

cont.

Prosecutor:Prosecutor: Are you therefore saying you have not used that word in the

past ten years, Detective?

cont.

Defendant’s response:Defendant’s response:

Yes, that is what I’m saying.

cont.

Prosecutor:Prosecutor: And you say under oath, that

you have not addressed any black person as a “nigger”

during that time?

cont.

Defendant’s Response:Defendant’s Response:

That’s what I’m saying, sir..

cont.

Prosecutor:Prosecutor: So anyone who comes to this court and quotes you as using

that word in dealing with African Americans would be a

liar…?

cont.

Defendant’s response:Defendant’s response:

Yes, they would.

cont.

Prosecutor: All of them, correct?All of them, correct?

Defendant’s response:

All of them.All of them.

On September 05, 1995, On September 05, 1995, Laura Hart McKinney testified Laura Hart McKinney testified

that in 1985, she had taped that in 1985, she had taped several interviews with several interviews with

Fuhrman in which he had Fuhrman in which he had referred to Black Americans as referred to Black Americans as

“niggers”.“niggers”.

Three other witnessesThree other witnesses collaborated this same collaborated this same

information, impeaching information, impeaching Fuhrman’s earlier testimony.Fuhrman’s earlier testimony.

Through his attorney, Mark Fuhrman issued a statement

“regretting the effect” his testimony had on the people of Los Angeles.

As part of his perjury conviction, he was

precluded from ever serving as a peace officer in the State of California.

HonestyHonesty is the key that opens the door to

RespectRespect

Final Do’s and Don’ts… Don’t

– Be late– Discuss your testimony with anyone once the trial

starts…. No one but L.E. prior to the trial– Carry your reports up to the stand– Wear your gun unless you ask the D.A. – Testify for the defense without notifying the D.A. – Guess… Say you don’t know… with proper

foundation, your reports may be used to refresh your memory

– Get cute on the stand

Final Do’s and Don’ts…

Don’t– Try to outsmart the defense attorney– Be afraid to say, “I don’t know.”– Guess– Drink water while testifying– Talk to others when sequestered

Final Do’s and Don’ts….

Do – Listen to the question

– Pause slightly before you answer

– State that you don’t understand a question

– Speak clearly and confidently

– Talk, don’t gesture

– Identify the defendant by what he is wearing and where he is seated.

– Be prepared to demonstrate

– Keep your answers short and simple

Questions and Problems…

Question: Officer Jones, what did you see? Answer: I saw that the defendant was

drunk.– What will the objection be???

“Objection your Honor, conclusion!”“ Sustained!!!”

Questions and Problems…

Question: Officer Jones, did you administer the field sobriety tests?– Answer: Did I administer the field sobriety

test? Well, that was Officer Smith’s first OWI stop.

• What will the objection be???

“Objection your Honor. The witness is being non-responsive!”

“ Sustained!!!”

The EndThe End